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Supreme Court of the United States

Why did Supreme Court punt on same-sex cases? Column

Tony Mauro
A police officer stands guard outside Supreme Court.

When the Supreme Court of the United Kingdom decides it does not want to consider a case that was brought before it, it tells the parties and the public why.

The explanation is usually short and sweet, along the lines of "the application does not raise an arguable point of law which ought to be considered by the Supreme Court at this time." The justices who voted to turn down the case are named.

But when the U.S. Supreme Court on Monday decided not to take up several petitions dealing with one of the landmark issues of our time — same-sex marriage — no explanation was given. It never is, and the justices appear to like it that way.

Instead, the public was left to speculate on the reasons for this non-action action, which allowed lower court rulings in favor of same-sex marriage to take effect in 11 more states — a major development that should not be the result of a stealth-like process.

Were the conservative justices fearful that if the court did review the cases, they would lose — and same-sex marriage would win constitutional protection nationwide?

Alternatively, did the liberals worry that they would lose if the court took on the cases and ruled that states are not required to allow same-sex marriage?

Both scenarios turn on uncertainty about Justice Anthony Kennedy, the court's swing vote. The vote of four justices is needed to grant review of a case, but five to win. Kennedy has taken the lead on expanding gay rights, but as Justice Ruth Bader Ginsburg said in a Reuters interview in August, Kennedy has also said marriage is a state matter. Those two views, she said, "don't point in the same direction."

Ginsburg is the only justice of late who has seemed willing to shed light on the workings of the court. In a public appearance last month, she hinted at another reason why there was "no need for us to rush" on the issue of same-sex marriage.

The reason: so far, all of the appeals court rulings on the issue have gone the same way, striking down state bans on same-sex marriage. The Supreme Court traditionally waits on the sidelines until at least two courts in different parts of the country vote in opposite ways. Only then does it step in to decide the issue and make laws uniform across the nation.

But all of these scenarios are speculation. We may not know the real reason until a justice retires and opens his or her papers to the public, which could be years from now.

Supreme Court justices like to say they are the most open institution in government, because they explain in writing why they rule one way or the other. But when they decide not to decide, their silence is deafening.

Tony Mauro is Supreme Court correspondent for The National Law Journal and the Supreme Court Brief. He is a member of the USA TODAY Board of Contributors

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